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home, as the fundamental fact of women s experience and as the root of the
problem.
Feminism and postmodernism
The influence of postmodernist thinking on feminism has been mixed. Its
obvious potential for deconstructing and destabilising all the assumptions
and norms of what radical feminists see as the central locus of male power in
modernity is counterbalanced by the threat it represents to the coherence and
stability of their own theories. It is in the nature of postmodernist analysis to
be disrespectful of all established truths . Nevertheless, the typical motifs of
postmodernist thought appeared in feminist theory as elsewhere some time
before it was consciously applied. The influence of Foucault s discourses
and analysis of localised power, his histories of the marginalised and
oppressed, had obvious resonance for the feminist projects of exposing the
hidden ways in which male dominance was perpetuated. Similarly, Derrida s
methods of deconstruction, identifying binary oppositions and the privi-
leging of one term over the other, had obvious application to the
male female, reason emotion, mental physical distinctions. In more general
terms, 1970s feminists tended to fall in with a widespread and rather uncrit-
ical absorption of the new anti-metaphysics dogmas, in particular the
assumption that foundationalism in epistemology was dead, with all the scep-
tical and perspectivist conclusions that in postmodernist hands this led to.
When postmodernism was adopted by some as an explicit feminist
strategy, it was not only addressed to the problems of articulating women s
experiences of oppression, but was also directed at the earlier feminist
schools of thought, all of which were seen as trapped within the theoretical
152 The reach of the law
framework of modernity, with all its grand concepts and grand narratives .
Not only traditional liberals, but also the culture-difference feminists and
radical-dominance theories came under the critical spotlight for remaining
under the spell of essentialism, the crucial modernist assumption that there
is a common core to the experience of being a woman, regardless of her
position in society, her relative power or powerlessness, her colour or ethnic
background, or her sexual orientation. Postmodernists have sought to place
the excluded and marginalised at the centre of theory, emphasising the
diversity of the experiences of real individual women in real situations, so
they have used the deconstructive techniques to express the reality of
particularised and detailed experiences of oppression, which are thought to
be as effectively smothered by the generality of the feminist concepts as they
are by conventional jurisprudence. The concepts of woman and gender
are as much the objects of deconstruction as any other.
Feminist jurisprudence as a whole, however, has been poised uncertainly
between the values of Enlightenment modernity and a full embrace of the
contemporary postmodernist culture. In the first place, the destabilisation
that it brings threatens to disintegrate their own conceptual schemes.
Feminists should be wary of the siren call to abandon gender as an organ-
ising concept (Barnett 1998: 199). In more general terms, the postmodernist
perspectivism, which makes of every truth-claim an ideological construct,
undermines the critical feminist positions as effectively as it does the domi-
nant male doctrines. Most importantly, perhaps, there has been a growing
recognition that the traditional struggle for equality under the law within a
liberal framework established at the very least a solid platform or spring-
board from which to work for substantive equality as well as formal. The
scepticism towards the masculine rights promoted by the Enlightenment,
on the grounds that these were designed for the enhancement of male power,
has its limits.
Rights in relation to class, sex and race
The main force of the criticisms of liberal thinking on rights, from feminists,
Marxists and CLS, lies in their universality and supposed emptiness. These
criticisms, while they contain many insights and expose weaknesses in liberal
assumptions, are at their most damaging when they go beyond the claim of
irrelevance to real problems and criticise the enactment of rights as consti-
tuting a positive obstruction to the promotion or defence of the real
interests of those whose rights are ostensibly being protected. This is a long-
standing theme in the Marxist criticisms of the liberal rule of law and, as we
have just seen, it appears in radical feminist theories. It is also a prominent
theme in the writings of the critical legal scholars, who have adapted Marx s
critique of liberal rights and his concept of the monadic bourgeois indi-
vidual to a critique of individualist human rights in contemporary law. A
strong motif in CLS criticism in the 1980s was the argument that rights as
Modernity and the reach of the law 153
they are understood by liberals in the modern world actually have the effect
of deepening the individualistic structure of society, because the preoccupa-
tion with legal rights and protections sets up barriers around artificially
isolated individuals, denying their essentially social nature and breaking
down local relations of community.
This argument has been developed separately by some feminists, but
vigorously resisted by others who see the danger in undervaluing what has
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